The constitutional article on the special position of women in the home has “never truly been tested” in the courts as a “protective guarantee” requiring the State to provide financial support for women in the home, a legal academic has said.
Dr Laura Cahillane said there was no reason Article 41.2 could not have been developed into a "rights-based provision," as was done to certain other provisions, by the radical Supreme Court of the 1960s and 70s.
Noting the government’s intention to hold a referendum on Article 41.2, she stressed society needs a fully informed discussion on that. The options being suggested included replacement of the provision with a gender neutral provision recognising the role of carers in the home.
The language of the existing provision is “undoubtedly paternalistic and protectionist” but we need to decide as a society if that original principle is “desirable”.
“Does society believe that in an ideal world, a child would have a stable influence to care for them at home and thus compensate the carer for performing such a social function?”
Dr Cahillane, a lecturer in the school of law at the University of Limerick, was addressing a session on Women and the Constitution at a conference in UL marking 80 years of the Constitution.
She said then Taoiseach Eamon de Valera had repeatedly said he could not understand the opposition to Article 41.2, the sole aim of which was protection of women.
There were similar provisions in other European Constitutions of the time, including the German Weimar Constitution but, while those probably had an influence on the decision to include Article 41.2, the strongest influence appeared to be Catholic social teaching.
At the time, Ireland was a "deeply conservative" society and its values were Catholic and patriarchal. In defence of the Article, Fr Charles McQuaid had said nothing "will change the law and fact of nature that woman's natural sphere is the home".
While Article 41.2 may have reflected contemporary mores in 1937, it attracted considerable criticism from women’s organisations and others.
There were fears it could be used to justify discrimination against women, particularly in the employment context, and some argued those were justified in the context of the 1941 law designed to keep married women out of public service employment.
Never tested
Dáil debates at the time showed the Article was intended as a tribute to work done in the home by women and a guarantee no mother will be forced to work outside of the home.
It was unclear if it was intended as “purely symbolic” with “no economic consequence” or to provide some sort of financial assistance.
Comments about potentially making future provision, while “vague,” signal the possibility of financial support in the future.
The late Supreme Court judge Brian Walsh, when writing about Article 41.2 in 1987, referred to it as a "protective guarantee" and expressed astonishment it had not at that stage been invoked in litigation, she noted.
There have only been a handful of cases in which the provision has been of any relevance and it has “never truly been tested as to its usefulness as a protective guarantee for women”.
The only cases in which Article 41.2 has had any effect have been either in defeating equality claims or in cases of marital separation, areas it could never originally have been expected to impact.
A case never arose on the direct issue of women being forced into employment out of economic necessity, she said.
Dr Cahillane noted, in his paper to the UL conference, Mr Justice Gerard Hogan had argued the Supreme Court has not been radical enough in its interpretation of the Constitution.
“This could certainly feature among the provisions which have not reached their potential.”
In her keynote address, Emily Logan, Chief Commissioner of the Irish Human Rights and Equality Commission, said the people's power to amend the constitution is "a crucial element" in how the State governs itself and shapes its future.
However, a constitutional referendum on matters politicians should legislate for should be seen as “a failure of politics” and there had unfortunately been perhaps “a little too much of this in the eighty years since the Constitution came into force”.
Unreflective of modern Ireland
The Constitution enshrined fundamental principles of equality, human rights and democracy here when most of the European continent succumbed to Fascism, totalitarianism and genocide, she said.
It has also posed “significant challenges,” at times proving “unreflective, and a barrier to, rather than a facilitator of, the realisation of fundamental rights”.
Amendments to the Constitution, even when achieved, are “never the end-point in a project of reform, or in recasting the state’s approach to important social issues” but are invariably “simply the starting point on a longer journey”.
The 2012 Children’s rights amendment for example, while welcome, was “no panacea” and many of the challenges faced in vindicating the rights of the child remain.
Many referendums result from public pressure to address pressing social issues, she noted.
While there were “many positives” to this culture, including giving the people a close relationship to the fundamental law of the country.
There was also a tendency in public and political discourse “to see every issue as something we should put into the Constitution, to ensure it will be locked in and protected from the vagaries of political and social change”.
The 1983 anti-abortion amendment was “perhaps emblematic” of the pitfalls of “rushing towards the Constitution as a means of addressing a perceived social problem”.
“Some things are best left to politics and the legislature.”
The risk of policy distortion was another “pitfall”. Because the Constitution was often characterised as an immovable expression of popular sovereignty and the will of the people, constitutional provisions could render politicians “overly cautious” such as on property rights guarantees in the context of housing policy.
“Worse yet,” the Constitution can form “a useful cover for what may otherwise perhaps be more readily seen as political inaction”.
The result is “law ends up being made not by our legislators, but belatedly and piecemeal by our judiciary,” resulting in “more than a few words of criticism from the bench in recent decades”.
The continued “deference” to the constitution and courts by governments and legislature encourage the people to look primarily to these as sites of meaningful change.
“In the process, trust in politics is eroded.”
The Constitutional Convention and Citizens’ Assembly have been a means of channelling public pressure for change into a more deliberative process, she said.
These demonstrated the capacity of members of the public, when removed from the “white heat” of a referendum campaign, to consider complex legal and policy matters with great discernment and skill.
While there is no doubt the law is of “central importance” to the attainment of human rights and the advancement of equality, “so are other things,” she also stressed.
“Excessive legalism,” whether domestic or international, in promotion of human rights may inhibit a sharper consciousness of rights in society by limiting the moral and rhetorical force of rights that transcends rights law, she said.
